Tenampa, Inc. v. Bernard

• Decision Date: 13 October 2020
• Docket Number: C/w WD 83243,WD 83226
• Parties: TENAMPA, INC., et al., Appellant-Respondents, v. William T. BERNARD, et al., Respondents; Westport Ultra Properties, LLC, Respondent-Appellant.
• Court: Missouri Court of Appeals

616 S.W.3d 327

TENAMPA, INC., et al., Appellant-Respondents,

v.William T. BERNARD, et al., Respondents;

Westport Ultra Properties, LLC, Respondent-Appellant.

WD 83226

C/w WD 83243

Missouri Court of Appeals, Western District.

OPINION FILED: October 13, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied November 24, 2020

Application for Transfer Denied March 2, 2021

Stephen W. Nichols, Kansas City, MO, for appellant-respondents.

Kim S. Summers, Kansas City, MO, for respondent-appellant.

Before Division Three: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Thomas N. Chapman, Judge

Gary D. Witt, Judge

Tenampa, Incorporated ("Tenampa") and the Rudolph A Garcia and Margaret A. Garcia Family Trust ("Trust")¹ appeal from the judgment of the Circuit Court of Jackson County finding that Tenampa owns a parking lot located at 1623 Westport Road ("Parking Lot") in fee simple but subject to an easement in gross owned by Westport Ultra Properties, LLC ("Ultra") for the daytime use of up to two parking spaces located within the Parking Lot and an easement in gross owned by Michael Gatrost and Julie Gatrost, husband and wife, (collectively "the Gatrosts") for the daytime use of up to two parking spaces located within the Parking Lot. On cross-appeal, Ultra asserts that it owns an easement appurtenant for the daytime use of up to four parking spaces located within the Parking Lot. We affirm in part and amend the circuit court's judgment pursuant to Rule 84.14,² to reflect that the Trust owns the Parking Lot in fee simple subject to an easement in gross owned by Ultra for the daytime use of up to two parking spaces located within the Parking Lot and an easement in gross owned by the Gatrosts for the daytime use of up to two parking spaces located within the Parking Lot.³

Factual and Procedural Background⁴

William Bernard ("Bernard") and Michael Gatrost ("Gatrost") purchased real property located at 1711 Westport Road ("Building Lot") which contained a commercial office building ("Building") by a warranty deed executed on May 1, 1986. Bernard and Gatrost were attorneys practicing individually, but the two shared office space within the Building. On August 1, 1986, the Bernards and the Gatrosts purchased the Parking Lot, which is located close to but not adjacent to the Building Lot and has approximately ten parking spaces. The Parking Lot consists of two tracts of land, which are legally described as:

Tract I:

All that part of the Northwest 1/4 of Section 30, Township 49, Range 33, described as follows: Beginning at a point on the East line of Genessee Street, 70 feet South of the South line of 43rd Street, which point is 1415 feet West of the East line of the Northwest 1/4 of said Section 30; thence East and parallel with the South line of 43rd Street, 69 feet; thence South 30 feet; thence West and parallel with the South line of 43rd Street, 69 feet to the East line of Genessee Street; thence North 30 feet to the point of beginning, in Kansas City, Jackson County, Missouri, EXCEPT any part in roads.

Tract II:

Part of the Southwest 1/4 of Section 19 and the Northwest 1/4 of Section 30, Township 49, Range 33, described as follows: Beginning in the South line of 43rd Street, as now established in said city, at a point 1415 feet West of the East line of the Southwest 1/4 of Section 19 and running thence South along the East line of Genessee Street 70 feet; thence East and parallel with the South line of 43rd Street, 40 feet; thence North and parallel with the East line of Genessee Street, 70 feet to the South line of 43rd Street; thence West along the street line last mentioned, 40 feet to the point of beginning, in Kansas City, Jackson County, Missouri, EXCEPT any part in roads.

Bernard and Gatrost recorded a warranty deed regarding the purchase of the Parking Lot. They purchased the Parking Lot in part to provide additional parking for their law practices, because they feared the city, at some point, would restrict parking on Westport Road due to increased traffic.

In 1995, the Garcias approached Bernard and Gatrost about leasing the Parking Lot to provide parking for their restaurant, Tenampa, that was directly adjacent to the Parking Lot because the restaurant's liquor license depended upon at least ten parking spaces being available for their customers. The Garcias, the Bernards, and the Gatrosts entered into a lease agreement allowing the Garcias and Tenampa to use the Parking Lot for their customer and employee parking. In 2000, the Garcias approached Bernard and Gatrost seeking to purchase the Parking Lot, and in two separate warranty deeds recorded on August 1, 2000, the Bernards and the Gatrosts each conveyed their fee simple interest in the Parking Lot to the Garcias, but retained an interest in the Parking Lot. The deed provided that:

GRANTORS AND OR THEIR HEIRS OR ASSIGNS SHALL RETAIN THE RIGHT TO UTILIZE THE PARKING LOT UP TO FOUR (4) SPACES DURING THE DAY, AND THIS WILL BE A CONTINUING RIGHT AND EASEMENT.

Subsequently, the Garcias executed a warranty deed conveying their interest in the Parking Lot to the Trust, "[s]ubject to covenants, conditions, easements, restrictions and reservations of record, if any."

On October 22, 2003, Joseph Robison and Nancy Robison (collectively "the Robisons") purchased the Building Lot from the Bernards and the Gatrosts. The warranty deed memorializing the transaction did not mention the four parking spaces nor any transfer of any easement in any parking spaces. A second warranty deed was recorded on October 22, 2003, conveying the Robisons' fee simple interest in the Building Lot to TBD Properties LLC ("TBD"). Gatrost moved his law practice out of the Building to Lee's Summit, but Bernard continued to work from the Building entering into a lease agreement for a portion of the office space with TBD. During his tenancy, Bernard continued to park in the Parking Lot until his law practice left the Building sometime in 2015.

On November 20, 2013, Ultra entered into a real estate contract with TBD for the purchase of the Building Lot, and the contract was silent as to any easement being conveyed regarding the Parking Lot and contained only the Building Lot's legal description. However, after obtaining a title report, Ultra's counsel became aware of the deed recorded on August 1, 2000, conveying the Parking Lot from the Bernards to the Garcias, but retaining the interest in the four parking spaces. Ultra's counsel was unaware of the deed recorded on the same date conveying Gatrosts interest in the Parking Lot to the Garcias. Ultra's counsel wrote a letter to Bernard stating in relevant part:

[Ultra] recently discovered that TBD Properties, LLC and Joseph L. Robison did not obtain the transfer of the easement of four parking spaces from you. Now that Westport Ultra is acquiring the property from TBD Properties, LLC, we are needing the assignment of the easement concerning those four parking spaces.

The Bernards executed an easement conveyance on December 24, 2013 transferring their interest in the four parking spaces to Ultra. Ultra proceeded with its purchase and closing on the Building Lot in February 2014, without securing the transfer of easement rights in the four parking spaces from the Gatrosts.

On February 21, 2014, three documents were recorded: (1) a warranty deed transferring TBD's fee simple interest in the Building Lot to Ultra; (2) the easement conveyance executed on December 24, 2013, by the Bernards conveying their interest in easement in the four parking spaces to Ultra providing that "[t]his easement conveyance shall run with the land and shall be binding upon [the Bernards], their heirs, successors, and assigns, and shall inure to the benefit of [Ultra] and its successors and assigns;⁵ and (3) a deed of trust in favor of Great American Bank securing the Building Lot and the use of four parking spaces in the Parking Lot as collateral for its loan to Ultra. Great American Bank recorded a second deed of trust on September 30, 2015, securing the Building Lot and the use of four parking spaces in the Parking Lot as collateral for a second loan to Ultra.⁶

On July 20, 2017, Tenampa and the Trust filed a Petition to Quiet Title to the Parking Lot in the circuit court naming as defendants: the Bernards, the Gatrosts, TBD, Ultra, Great American Bank, David Kenner,⁷ and MPOWB Trustee Services, LLC,⁸ and the unknown heirs, devisees, grantees, assignees, donees, alienees, legatees, administrators, executors, guardians, mortgagees, trustees, and legal representatives and all other persons corporations, or successors claiming by, through or under them. Tenampa and the Trust brought six claims: Count I (Quiet Title), Count II (Injunction), Count III (Trespass), Count IV (Slander of Title), Count V (Adverse Possession), and Count VI (Declaratory Judgment). In essence, the petition alleged that the easements for the four parking spaces in the Parking Lot held by the Gatrosts and the Bernards had been extinguished and that Tenampa and the Trust were entitled to sole unencumbered ownership and use of the entire Parking Lot. On August 17, 2017, the Gatrosts individually filed separate Answers. On October 17, 2017, Bernard filed his Answer. On November 20, 2017, Ultra filed its Answer asserting a counterclaim alleging that the Garcias, while acting on behalf of Tenampa and the Trust, committed trespass.

On December 18, 2017, Great American Bank, David Kenner, and MPOWB Trustee Services, LLC disclaimed any interest they may have in the Parking Lot, and Tenampa and the Trust dismissed their claims against those defendants with prejudice. On January 23, 2018, Ultra dismissed its counterclaim against Tenampa and the Trust. The circuit court conducted a trial on March 1, 2019, and after hearing the evidence and considering substantial legal briefing by the parties, the circuit court entered its final judgment on July 31, 2019, entering judgment against Tenampa and the Trust on Counts...